A Valid International Problem vs. A Valid International Law: Shifting modes of Responsibility in International Criminal Law

Abstract

International crimes tend to have an inherently collective nature, creating a tension with the fundamental notion in criminal law of individual responsibility. In attempting to hold individuals responsible for collective crimes, particularly where there was only indirect participation, we have seen monumental shifts in basic notions such as the principle of legality, requirements of mens rea and participation in the actus reus. Creativity may well be required to deal with new ways in which these crimes are committed, but we must be wary that we are not shifting modes of responsibility beyond the basic tenets of criminal law. The central question of this paper is: by what process does the normative content of ICL develop, in particular modes of liability, and what does this mean in terms of valid sources of ICL? Some important questions which will be considered whether the principle of legality should prevent shifts in recognized modes of responsibility, or whether the problems particular to the international nature of ICL warrant acceptance of such shifts. The conclusion asserts that if a concept in ICL cannot be found directly in one of the sources of international law, there is in fact another way by which the normative content of international criminal law is being developed. A dynamic feedback process between domestic and international law-makers can be observed, based on a communication model of law-making in international law.The controversial notion of Joint Criminal Enterprise (JCE) is taken as a case study for how this process of law-making takes place, including difficulties with application of a traditional doctrine of sourcers. Of particular interest is the way in which this mode of liability seems to have grown from its judicial inception to more general application despite uncertainty as to its status under international law. It is the author's belief that the dynamic process by which international criminal law is being developed can explain the place JCE is taking in this field of law. However some attention should be paid to the ruling principles of criminal law if this is to be considered valid law.